Thursday, March 01, 2007

AD1: Decisions for February 27, 2007

Lying to police, dropping keys = reasonable suspicion to justify detention

People v Padilla, 2007 NY Slip Op 01604 [available here]

At a community meeting, an elderly woman told a police officer about unspecified "suspicious activity" involving a "Hispanic man with a blue BMW" near a certain housing project. Padilla, 2007 NY Slip Op 01604.) About a week later, officers were patrolling near the housing project when they observed defendant pull up to the housing project in a blue BMW, enter the housing project, and exit about 10 minutes later. (Id. at __.) The officers approached the defendant "to inquire whether defendant had a lawful basis to be" in the housing project. (Id.) When asked where he was coming from, the defendant "stated that he was coming from up the block, which [the officer] knew to be a lie." (Id. at __.) While defendant was talking, he "extend[ed] his right hand and nonchalantly drop[ped] a key chain." (Id. at __.) The police pressed the issue, and defendant changed his story and said he had been "visiting a family in apartment 3B" of the housing project. (Id.)

At this point, the police detained the defendant and took him into the housing project "to verify defendant's account [...]." Long story short: the police noticed an "overpowering" smell of marijuana coming from the fourth floor, heard a generator running inside an apartment on the fourth floor, and used the defendant's key to let themselves into the apartment that had been converted to a marijuana greenhouse. (Id.)

Based on those facts, the trial court granted defense counsel's motion to suppress. The First Department reversed. The Court reasoned that the encounter was justified at its inception because the old lady's tip at the community meeting provided an objective and credible reason for approaching the defendant and asking general questions about "where he had come from [...]." (Id. at __.) "The encounter then appropriately progressed from a 'request for information' to a temporary detention" because the defendant lied about where he was coming from and dropped his keys. (Id. at __.) Once the defendant's key fit the door for the marijuana greenhouse, probable cause existed for arrest. (Id. at __.)

Yet another decision invoking the so-called "investigatory detention" automatically with absolutely no mention of the critical threshold inquiry--whether a reasonable, innocent person would have felt free to leave upon being "detained" by the police. If a reasonable, innocent person would not feel free to leave, the the "detention" is a full de facto arrest justifiable only on a showing of probable cause. The type of reasoning employed in Padilla waters down the protections of the Fourth Amendment, essentially setting up a "reasonable suspicion" standard for most detentions, with "probable cause" relegated to some exception to be claimed if the so-called "investigatory detention" crests some unspecified threshold of severity.

Potential juror's statement that she would do her best to overcome bias is a sufficiently unambiguous statement of impartiality

People v Ortiz, 2007 NY Slip Op 01605 [available here]

In a decision that gets to the right result while still managing to make terrible law, the First Department reversed defendant's conviction because a potential juror said during jury selection that would not be able to separately determine guilt on each of the several counts against defendant. Perfectly legitimate grounds for reversal; but it is what the First Department holds elsewhere in the opinion that is truly baffling.

Another potential juror was challenged for cause during jury selection. This juror, when asked "if she could assess defendant's guilt as to the various charges arising out of three separate incidents, ... stated, 'I would have a hard time not lumping everything together.'" (Ortiz, 2007 NY Slip Op 01605.) The judge asked her if she could use her "best efforts" to evaluate the proof, and the juror said "yes." (Id.)

Later, the same juror said she "might" give more credibility to police officers. (Id.) When defense counsel asked her if she could follow an instruction to treat police testimony the same as any other witness, "she responded, 'I will do my best.'" (Id. at __.)

While acknowledging that the trial court should strike a potential juror who fails to give unequivocal assurances of impartiality, the First Department held the trial court's refusal to grant defense counsel's challenge for cause was appropriate. Here's how the First Department framed and resolved the issue:

Where the prospective juror's assurance of impartiality is expressed in less than a definitive "yes" or "no" reply, service should not be permitted unless the juror's responses "taken in context and as a whole, were unequivocal." Here, venireperson Puder responded with an unequivocal "yes" when asked if she could use her best efforts to evaluate the three incidents individually and stated that she would do her best when asked if she would impartially evaluate testimony given by a police officer.

(Id. at __.)

This is just a ridiculous oversimplification. The standard is whether the juror gives an unequivocal assurance of impartiality. Giving a simple "yes" answer to a question phrased in ambiguous terms is not an unequivocal assurance. That is just what happened here; what exactly does it mean when a juror says she will do her best to overcome her stated bias? How good is her best? The judge's questioning here did absolutely nothing to clear up the ambiguity, but rather injected more uncertainty into the mix. The fact that her answer was a simple "yes" doesn't change the fact that the question itself was ambiguous. The First Department's reformulation of the Arnold standard to some simple "yes/no" requirement guts the standard.

Defense counsel's concession at suppression = ineffective assistance of counsel

People v Johnson, 2007 NY Slip Op 01606 [available here]

After a suppression hearing, defense counsel told the court (among other things), "'I don't believe in doing vain things and trying to ask a Judge to do something that I would not do. And I don't believe I have sustained, frankly, my burden to show the unlawful and unconstitutionality of the search. So I can't really argue.'" (People v Johnson, 2007 NY Slip Op 01606.) Quality advocacy, that. The First Department reversed on ineffective assistance of counsel grounds, noting the suppression record presented "colorable" issues and "we can discern no legitimate strategy or tactic which would have led counsel to simply concede all of the points raised." (Id.)